USA: An Introduction to Litigation PR & Communications

Litigation Communications: Overview and Trends 

In 2024, legal disputes across all practice areas and industries in the United States continued to demonstrate the impact of public perception, media and social media on the practice of law. Yet a strategic, cohesive approach to communicating effectively during litigation and other legal disputes remains the exception rather than the rule, even among otherwise elite litigation departments and teams.

Good litigators, of course, come armed with the best tools for every aspect of courtroom advocacy: research and investigations, technology for document review and discovery, the latest and best practices in mock juries, negotiation, and damage evaluation. They build the most skillful, cost-effective, and experienced teams of lawyers and advisors to build the factual record, evaluate and mitigate risk, and otherwise aggressively pursue their clients’ interests.

Yet when it comes to considering communicating during litigation, these same legal teams are often flying blind. Even in an age of perception, social media saturation and 24-hour news, the impact of the public arena on litigation is often an afterthought. So, too, the impact on a client’s overall reputation, market share, and (if a public company) share price. Thoughts of the “court of public opinion” are often relegated to a client’s internal public relations operation, or handled only after the “real work” of litigation is completed, or addressed only in the wake of a flurry of media inquiries or a social media storm.

Increasingly, however, forward-thinking litigators understand that advocacy, in its broadest sense, encompasses representing client beyond the four walls of a courtroom. There is a realization that the way a legal matter is perceived publicly shapes the perceptions, and actions, of judges, their clerks, juries, regulators, legislators and other public officials, and—perhaps, most importantly—opposing parties.

The practical result? In a world where most cases eventually settle, effective advocacy in the public arena can mean millions saved at the settlement table. It can also mean avoiding millions more in losses in market share or other reputational damage, and mitigation of other adverse consequences such as follow-on suits, regulatory investigations, or government hearings and investigations.

Thus, effective litigation communications is a critically important litigation management function. As US Supreme Court Justice Anthony Kennedy put it more than 30 years ago in Gentile v. State Bar of Nevada (501 U.S. 1030, 1043 (1991)):

An attorney’s duties do not begin inside the courtroom door … an attorney may take reasonable steps to defend a client’s reputation … [a] defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.

Bear in mind this was written in 1991, when cable television news was in its infancy, the internet was the domain of a select group of computer scientists and tech geeks, and social media did not exist. Without question, Justice Kennedy’s statements are all the more relevant today.

What is Litigation Communications? 

It is critically important for lawyers (and their clients) to understand that litigation communications is not simply the act of writing a press release, or putting a statement on a newswire service in response to an incendiary legal filing by an aggressive plaintiff’s lawyer. Nor is litigation communications limited to press conferences on the courthouse steps or late-night interviews on cable news.

Each of these events may occur in a legal dispute, but litigation communications as a strategic discipline is far more than this. Litigation communications is increasingly a critical part of the overall litigation management process, as important to the case as aggressive factual investigation and legal research, retaining the right experts, or utilising effective document management technology. Planning and proper resources are key.

Why is Litigation Communications Important? 

One reason is that most cases will never see the inside of the courtroom—at least not for trial.

In the US, it is estimated that more than 95% of legal actions settle before trial or other formal adjudication. Thus, the court of public opinion is often the only forum where guilt or innocence (or, in the civil sense, liability) is ultimately assigned. And the way a case is managed publicly can have a significant impact on the perspectives and negotiating position of the parties when they eventually reach the settlement table.

For example, if a defendant in civil litigation in the US has been publicly battered in the media (social media included) for months, that party’s settlement posture will be far different than if such public condemnation had been avoided. Alternately, if a defendant can show plaintiffs' lawyers that their skill and ability at handling the communications aspects of litigation will make it harder to “try the case in the media,” plaintiffs’ posture throughout the litigation—and the level of resources plaintiffs’ lawyers devote to a particular case—will change dramatically. Put simply: without the prospect of a quick and easy payoff, plaintiffs’ lawyers often lose interest. For both plaintiffs and defendants in litigation, therefore, managing the process effectively can have a considerable impact on its ultimate resolution.

This has never been truer than in this age of social media, smartphones and a 24-hour news cycle, where lawsuits are brought more quickly than ever—and parties are launched into a public (and sometimes global) spotlight even faster. For defendants, a successful litigation communications strategy can help mitigate the damage caused by lawsuits. It can mean the difference between a “blip” of media coverage and a full-blown reputational disaster.

The key lies in effectively communicating to the right audiences—including external audiences such as the media, or internal audiences such as employees or investors. Having a plan in place for litigation communications response can be one of the most valuable defense mechanisms against reputational damage as a legal dispute progresses.

A Holistic Approach 

Smart lawyers and clients should look to take a holistic approach to this critical aspect of modern litigation. This may include some of the following elements:

• In-depth monitoring of media and social media coverage;

• Fostering productive interactions with reporters and editors, analysts and other key stakeholders;

• Framing issues in the mind of the public by ensuring that your narrative (ie, the storyline that surrounds your client’s position, defenses and arguments) is understandable, accessible and persuasive;

• “Inoculating” against negative attacks before litigation is underway by establishing and reinforcing positive positions;

• Understanding the role of the many third-party commentators and other analysts who often shape debate;

• Marshalling website and social media outlets properly to ensure the right perceptions resonate with each of the audiences important to your case and your cause; and

• Otherwise ensuring a client’s point of view is presented correctly throughout a dispute.

This strategic overlay to the management of perception is essential to litigation communications success, but is often overlooked in the heat of an adversarial legal battle.

Framing Issues During Legal Disputes 

Framing issues properly and communicating messages quickly and clearly to the public is no easy task, but in the digital age, when media coverage emerges just minutes or hours after any given development in a case, speed and clarity are critical. Getting ahead of coverage by providing audiences with the information, documents and facts they need (in an easily digestible way), along with a summary of what you want them to learn from this information, is crucial to controlling public perception of any legal dispute.

Yet, we often hear: “Just send the media the briefs and exhibits. After the reporters read all this, they’ll understand.”

Counting on your audience to read pages and pages of anything, never mind legal jargon, is dangerous. Distilling your story for outside audiences is the only way to ensure these audiences understand the strengths of your argument and your client’s reasons for taking the positions they have taken.

Your narrative must be cemented, concisely and memorably, in the minds of the stakeholders who will influence perceptions regarding the legal dispute. A message that is easily repeated is more easily understood (we often call narratives such as these the “mantra” of the case). And no, your particular litigation isn’t too complex to communicate effectively in this manner. We have – quite literally – trained nuclear rocket scientists on these techniques. They work.

The Digital Age and the Need for Speed 

In the digital age, for even the most “legitimate” of news outlets, speed reigns supreme. Nearly all media – from Buzzfeed to The New York Times – face rolling deadlines and the looming threat that another media outlet will beat them to the story.

Thus, while media want the truth, they also want it now, and that means giving it to them in a form that’s useful to them (and, by extension, their readers or viewers). Time is of the essence, and with pressing deadlines, those influencing perceptions surrounding your matter have less time than ever to sift through reams of highly complicated legal documents to uncover the story within.

An unfortunate side effect of this insatiable need for speed is that media outlets – including prominent mainstream media outlets – often get things wrong, particularly if you are not setting them straight at the outset. And erroneous information can spread worldwide almost instantaneously, with enormous ramifications for both your client’s reputation and their case. Consider the recent US defamation case Scott Sapulpa v. Gannett Co., Inc., et al. (Muskogee County District Court, Oklahoma, CJ-21-100), from early 2024, which involved the spread of defamatory content that was posted on a daily newspaper website for little over two hours. Even though the false information was removed, the original story was picked up by approximately 800 media outlets worldwide. A damages expert at trial estimated it would cost nearly a million dollars for a public relations and social media campaign to begin to repair the plaintiff’s reputation. Ultimately, an Oklahoma jury awarded the plaintiff USD26 million in punitive and compensatory damages (the verdict is under appeal).

The lesson in this case is clear: In this new age of rapid internet sharing and social media reposting, the first version of a story is the one that is circulated most widely, including through aggregators like Google News and on social media platforms. Updated or revised stories may appear on the original media outlet’s website or social media, but it is the older version that most of the world sees. Thus, if that first story is false or inaccurate, from the standpoint of reputation, the damage is already done. 

TikTok and other Social Media use – Surprise! – mainstream media as their source. 

The example above highlights another key trend in litigation communications in this social media age: social media posts are often based on original reporting of stories online, including in local media, mainstream national media outlets, and business, legal or financial platforms. In other words, social media posts generally don’t materialize organically out of the ether (unless, of course, they are planted there by foreign agents looking to do harm—but that is a topic far beyond the scope of this article). Rather, most social media posts use legitimate news media reporting as the jumping-off point for their own content. Thus, if you influence the original reporting on a legal issues, case, or client, you will influence the social media activity that follows. Hence the further need to have tight messaging that resonates, and to engage forcefully and skillfully with local and national media outlets that are the feedstock for any social media firestorm.

Conclusion 

Over the past year, the rise of business, legal, and social media platforms continued to alter the landscape of the practice of law. Indeed, the past few decades have seen the launch of thousands of trade media, blogs and other content platforms—now all online and accessible to everyone, everywhere, all the time. This new supply of, and demand for, legal news has one inevitable consequence: while you can hope that litigation will not garner attention, you can no longer assume this. In the end, smart litigators and their clients have a plan to confront this new reality.